5th Amendment—Then and Now

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The 5^th Amendment is talked about almost as much as the 2^nd Amendment, yet most people only focus on one clause of the amendment. Let’s take a closer look.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury,

America’s criminal legal system is based the verbiage of this clause. As many people know and understand, this is a pretty low bar. If you are paying attention, it is said that “a ham sandwich can be indicted if properly presented.” The founding generation understood the meaning of this, and common sense prevailed. This clause is dependent on the honesty, virtuousness, and integrity of the people bringing criminal charges against an individual. If the Founding Fathers or anyone from their generation were to look at some criminal indictments in 2024, they might suggest that the system has gone astray.

except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger;

This clause is an exception to allow the military to deal with criminal issues within the ranks of the military in a more expeditious manner to maintain good order and discipline necessary. The Uniform Code of Military Justice sets the standards for the military.

nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb;

This is one of the most important clauses in the 5^th Amendment. Once a person has been tried on a particular crime and found “not guilty,” that person cannot be charged again for that specific crime. This clause has actually held up quite well with the test of time.

nor shall be compelled in any criminal case to be a witness against himself,

This is the clause of the 5^th Amendment most people think about when the 5^th Amendment is discussed. The founding generation had no difficulty understanding exactly what this clause said and meant. Like everything in the United States Constitution, this clause was dependent on the honesty, virtuousness, and integrity of the officials executing its administration.

However, in 2024, this clause is also the easiest clause to get a person in trouble when dealing with authorities. When political operatives, operating under the guise of legal authority, wish to abuse this clause, it is an easy clause to weaponize. How so, you might ask.

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When a person submits a written or verbal statement under oath, that person comes under the penalty of perjury if he/she lied. That is an easy concept to understand. If at a later date, months or even years after the original statement an individual provides an answer that conflicts with the earlier statement, there are a number of possible reasons for the discrepancy.

1. His/her memory of the issue is simply different.
2. The context of the issue has changed and impacts the memory.
3. He/she simply misspoke either time the question was asked.
4. He/she was intentionally lying one or both times the question was asked.

The corrupt political operative selects the 4^th possibility, and the person ends up in jail. Have you seen any events that you suspect the weaponization of this clause of the 5^th Amendment? I bet the Founding Fathers could spot some abuses.

There are many opportunities for a person to get himself into trouble inadvertently when speaking to authorities regarding potential criminal action against them. There is a lot to be said about declining to speak when sometime down the road someone might try to use your spoken words against you.

nor be deprived of life, liberty, or property, without due process of law;

Once again, in 1787 these words were easily understood by everyone. In today’s world, not so much. What is “due process of law?” In 1787, laws were made only by elected officials. In 2024, and since World War II, rules and regulations have been instituted by unelected bureaucrats and are enforced as if they were legislated laws the result is that American citizens are being deprived of liberty and property, on a regular basis.

Do Americans now have restrictions on where and when they can go places? Try to exercise your liberty by driving your all-terrain vehicle in a wilderness area. If you do, you can expect to be deprived of you property in the form of money and/or your ATV. Do you think that’s what the Founding Fathers had in mind?

nor shall private property be taken for public use, without just compensation.

Prior to 1776, the King’s government took property as it saw fit. In 1787, when the Bill of Rights was enacted, this clause was designed to prevent any government from taking property without just compensation. And for the first 200 years it worked pretty well.

However, in the last five, or so decades, the use of eminent domain has from time to time been used in a rather cavalier manner. I recall an instance where a city took property under eminent domain and then promptly sold the property to a commercial developer. Do you think the developer could have purchased the property from the original owner for the price the city sold it to him? I seriously doubt it.

Many people would say that when any government bureaucracy institutes any regulation that in any way restricts the use of privately owned land, it is a taking in violation of the 5^th Amendment. I think the Founding Fathers would view that in the same way. Is the 5^th Amendment the same today as it was in 1787? I just don’t think so.

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